Kasemer v. Nat. Fuel Gas Distribution Corp.
| Decision Date | 03 July 1980 |
| Citation | 421 A.2d 226,279 Pa.Super. 334 |
| Parties | Gregory A. KASEMER and Patrick G. Kasemer, a Co-Partnership d/b/a Fountain House Park and Andrew G. Kasemer and Dorothy M. Kasemer v. NATIONAL FUEL GAS DISTRIBUTION CORPORATION, Appellant. |
| Court | Pennsylvania Superior Court |
Norman H. Stark, Erie, for appellant.
Paul D. Shafer, Jr., Meadville, submitted a brief on behalf of appellees.
Before VAN der VOORT, SPAETH and WATKINS, JJ.
VAN der VOORT, Judge:
This is a claim in assumpsit by operators of a mobile home park against a gas company to recover damages alleged to result from the gas company's refusal to supply gas in breach of an alleged contract of defendant to supply gas service to plaintiffs for upwards of 110 mobile homes.
Plaintiffs began the development of the park in 1972, intending eventually to construct 100 or more sites for rental to operators of mobile homes. By the end of 1974 they had readied for occupancy approximately 11 sites of which 5 were occupied between September, 1974 and April 1, 1975.
Defendant (sometimes referred to hereafter as NFG) supplied gas to plaintiffs' tenants until April 1, 1975, but refused to supply gas to additional tenants after that date. The basis of NFG's refusal was an order dated February 1, 1972 of the Pennsylvania Public Utility Commission, forbidding the gas company to take on additional customers beyond its peak capacity. NFG determined that the PUC Order of February 1972 became applicable to it, effective April 1, 1975, because of curtailments of gas supply by its suppliers in December of 1974. See Leveto v. National Fuel Gas Distribution Corporation v. The Pennsylvania Public Utility Commission, 243 Pa.Super. 510, 366 A.2d 270 (1976).
Plaintiffs brought an action in equity against the NFG seeking a mandatory injunction to force NFG to supply gas service to plaintiffs. On May 27, 1975, the Court of Common Pleas ordered defendant to provide gas service to plaintiffs up to a maximum of thirty units. Defendant apparently complied with this order of May 27, 1975 until July 23, 1975 when the P.U.C. issued its order directing defendant not to make further sales of gas, other than to customers already being served, and defendant then refused to supply gas to additional tenants of plaintiffs.
On August 12, 1975 the Common Pleas Court held NFG in contempt of the court's order of May 27, 1975. NFG purged itself of contempt by renewing the supply of gas for plaintiffs, but appealed the contempt order to the Superior Court without asking for a supersedeas. On September 25, 1975 the PUC petitioned to intervene in the appeal to the Superior Court and asked for a supersedeas. The supersedeas was granted on October 6, 1975 and apparently NFG discontinued the supply of gas until November 22, 1976, on which date the Superior Court affirmed the Common Pleas contempt order of August 12, 1975. See Leveto v. NFG, supra.
As of November 22, 1976 NFG resumed the supply of gas for plaintiffs.
In August 1976, plaintiffs filed this present action in assumpsit against NFG for breach of an alleged contract to supply gas, claiming damages originally for loss of value of their real estate, 1 plus extra expenditures necessitated by defendant's refusal to supply gas, plus (by an amended complaint) "loss of income over the past 11/2 years" (Paragraph 12a of the Complaint).
Defendant's answer denied the contract and any breach of contract, and any liability for damages.
The case went to trial and a jury returned a verdict against defendant for $45,000.00.
Defendant's motions for judgment N.O.V. and for a new trial were refused, and defendant has filed this present appeal.
Defendant-appellant has raised three issues in this present appeal. The issue which we will first consider is this:
"The Appellees are not entitled to damages for an alleged breach of contract with NFG during the period of time NFG was bound by an order of this Court not to perform its obligations under the contract."
The printed record appears to establish that NFG failed, or refused to supply gas to plaintiffs during these periods:
April 1, 1975 to May 27, 1975, or 57 days
(because NFG understood it was so required under the PUC's order);
July 23, 1975 to August 12, 1975, or 20 days
(in response to an order of the PUC);
October 6, 1975 to November 22, 1976, or 413 days.
This last period of non-delivery of gas was pursuant to an order of the Superior Court on the PUC's petition to intervene. The order reads (Record 126a):
ORDERAND NOW, October 6th, 1975 upon consideration of the petition of the Pennsylvania Public Utility Commission for leave to intervene, said petition is hereby granted and petitioner is granted leave to intervene as a party appellant. Said petitioner's request for supersedeas in the above captioned matters is also granted and National Fuel Gas Distribution Corporation is ordered to cease all further attachments of New residential service as required by orders of the Crawford County Court of Common Pleas on May 27, 1975, and June 6, 1975 at Nos. 2 and 4, May Term, 1975, in Equity, pending final outcome of the instant appeals. This case is advanced to the December 1st session in Philadelphia. Per Curiam, Van der Voort, J. (Emphasis supplied).
NFG argues that it is excused from liability to plaintiffs for any failure to supply gas in the period from October 6, 1975 to November 22, 1976, under Sec. 458 of The Restatement of the Law of Contracts, which has been adopted by our Supreme Court in Olyphant Borough School District v. American Surety Co. of New York, 322 Pa. 22, 184 A.2d 758 (1936), and which reads in pertinent part as follows:
A contractual duty or a duty to make compensation is discharged, in the absence of circumstances showing either a contrary intention or contributing fault on the part of the person subject to the duty, where performance is subsequently prevented or prohibited
... (b) by a judicial, executive or administrative order made with due authority by a judge or other officer of the United States, or of any one of the United States.
We agree with defendant's argument.
The lower court's opinion, refusing n. o. v., says:
A supersedeas might so provide in any given case. The supersedeas which was granted in this present case, however, ordered defendant "to cease all further attachments of new residential services as required by orders of the Crawford County Court of Common Pleas on May 27, 1975, and June 6, 1975 ...." (Record 126a)
It seems to us, therefore, that NFG's refusal to supply gas to new outlets from October 6, 1975 to November 22, 1976 comes within the general intention of Sec. 458.
The Lower Court, and the plaintiffs argue, however, that even if Sec. 458 were otherwise applicable to this case, it should not be applied to excuse defendant from liability because of "a contrary intention or contributing fault" on the part of the defendant, specifically that defendant "co-operated with the PUC in the latter's obtaining the supersedeas (the Superior Court's Order dated October 6, 1975) and resisting vigorously all attempts of the Plaintiffs to have it removed". (Plaintiffs' Reply to New Matter).
We find no sufficient evidence of "contrary intention" or "contributing fault" of NFG as to the supersedeas order of October 6, 1975. The record is plain that defendant did not ask for a supersedeas when it filed its appeal from the contempt order of August 12, 1975. It was the PUC which applied for and was granted the supersedeas put into effect by our Court on October 6, 1975. The lower court says in its opinion that plaintiffs established at the trial "that before the Public Utilities Commission intervened it was in touch with the defendant ...." (Appellant's Brief, page 41). We do not believe that this circumstance is nearly enough to establish connivance, contributing fault, or contrary intention of the defendant, which would made Sec. 458 inapplicable to defendant.
Plaintiffs claim further that defendant took itself out of the protection of Sec. 458 by opposing a motion filed by plaintiffs to our Court on March 6, 1976 asking us to remove the supersedeas. The printed record and briefs supplied to us on this appeal give us no sufficient demonstration that defendant's action in opposing plaintiffs' petition of March 6, 1976 was improper so as to make Sec. 458 inapplicable. The plaintiffs' petition 2 concluded with a prayer that the Superior Court "remove the supersedeas entered on October 6, 1975 ...." (Appellees' Brief, page 12b). The defendant's Answer "requests this Court (the Superior Court) to maintain the supersedeas as modified until such time as it decides the jurisdictional issue that is the subject of this appeal." (Appellees' Brief, page 13b).
We hold, therefore, that the refusal, or failure of defendant to supply gas from October 6, 1975 to November 22, 1976, comes within Sec. 458 of the Restatement of Contracts, and that refusal or failure is not a valid basis for plaintiffs' claims for damages.
We turn now to the refusal or failure to supply gas from April 1, 1975 to May 27, 1975, and from July 23, 1975 to August 12, 1975. The record seems to establish with reasonable clarity that the defendant's actions in these two periods of time resulted from orders of the PUC which defendant complied with until ordered to take other action by the Crawford County Court.
Admittedly the defendant was a "utility", subject, in the usual order of things, to control and regulation by the PUC. We believe that defendant should not be subjected to liability for damages to others for acts done by it in compliance with the PUC's orders, unless...
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